Supreme Court New South Wales Medium Neutral Citation: R v Botrus (No 2) [2020] NSWSC 1205 Hearing dates: 2 September 2020 Date of orders: 2 September 2020 Decision date: 04 September 2020 Jurisdiction: Common Law - Criminal Before: Walton J Decision: The application for leave, pursuant to s 38(1)(c) of the Evidence Act 1995 (NSW), is granted. Catchwords: CRIMINAL LAW – application by Crown for leave to cross-examine witness under s 38(1)(c) Evidence Act 1995 – prior inconsistent statement – common sense approach – s 192 considered – leave granted Legislation Cited: Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Cases Cited: Cotton v Commissioner for Road Transport and Tramways (1942) 43 SR (NSW) 66 Category: Principal judgment Parties: Regina (Crown) Fredon Botrus (Defendant) Representation: Counsel: M Clark (Crown) S Pararajasingham (Defendant) Solicitors: Office of the Director of Public Prosecutions (Crown) Sayad Sahinovic Legal (Defendant) File Number(s): 2019/11627 REASONS FOR DECISION 1. By indictment dated 31 August 2020, Fredon Botrus ("the accused") was charged that, on 11 January 2019, at Sydney in the State of New South Wales, he did murder Alfredo Isho ("the deceased"), contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The accused pleaded not guilty to the offence. 2. The trial commenced on Thursday, 31 August 2020. 3. During the course of the examination of a witness called by the Crown, Mr Zaya Amanoael, the Crown sought leave under s 38(1)(c) of the Evidence Act 1995 (NSW) to cross-examine the witness. Counsel for the accused, Fredon Botrus, opposed the grant of leave. 4. Leave was granted for the following reasons. 5. The Crown application enlivened two provisions of the Evidence Act: ss 38 and 192. 6. Section 38 provides: 38 Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about— (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. Note— The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7. (4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account— (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. (7) A party is subject to the same liability to be cross-examined under this section as any other witness if— (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and (b) the party is a witness in the proceeding. 1. Section 192 provides: 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account— (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. 1. Mr Amanoael gave evidence that he had spoken to a person at the rear door of the hairdresser salon, "Classico Hair Studio", shortly before the stabbing of the deceased. The person to whom Mr Amanoael spoke to was wearing a motorbike helmet. However, the visor of the helmet was raised so that, according to Mr Amanoael's evidence, he could see the person's eyes and the skin under his eyes. Mr Amanoael believed that he saw that person hit the deceased at the salon chair he was working at was the same person he had spoken to at the door. 2. The s 38 application sprung out of the following evidence singular question and answer: Q. Do you remember what colour eyes the person had? A. INTERPRETER: I didn't pay much attention. 1. The Crown contended that Mr Amanoael had made a prior inconsistent statement. This was to be found, it was contended, in para 8 of his police statement of 11 January 2019 ("the police statement"), made on the day the stabbing of the deceased. 2. For completeness, I have extracted the whole of para 8, although the part of the paragraph upon which the Crown relied upon is italicised ("the italicised passage"): 8. I went to the back door and opened it. I saw a guy wearing a helmet. It was a motorbike helmet. He was standing at the back door next to the step. I am not sure what colour the helmet was. I could see his eyes, the shield on the helmet was up. I could see dark skin. It looked like he had the same skin colour as mine. I think he had black eyes. I didn't really pay attention to his face. I didn't see what he was wearing. There is one step, so I was higher than him and didn't see what he was wearing below. This guy said to me, "I want to cut my hair". I said to him, "Use the front door". [Emphasis added.] 1. The answer given in evidence in this trial, which attracted the s 38 application, and the italicised passage shall be collectively referred to as "the statements". 2. The Crown submitted that the evidence given by Mr Amanoael was inconsistent with the police statement. The Crown placed no reliance upon s 38(1)(a). 3. Counsel for the accused, Mr S Pararajasingham submitted to the contrary, relying upon the absence of an inconsistency between the statements as well as the ambiguity contained within the italicised passage. 4. Inconsistency for the purpose of s 38(1)(c) is not to be determined by "splitting hairs" about the form of a statement but by examining whether it is inconsistent with a prior statement as a matter of common sense: Cotton v Commissioner for Road Transport and Tramways (1942) 43 SR (NSW) 66 at 71 (per Jordan J). 5. Given that Mr Amanoael otherwise made unequivocal statements in those parts of para 8 of his police statement other than the italicised passage, Mr Amanoael may be taken as using the words "I think", in his statement "I think he had black eyes", in an ordinary or common place manner. Thus, he should be understood as stating that he believed his statement regarding the colour of the eyes of the person standing at the rear door of the salon to be true but he was not sure. 6. Even if the statement was treated as one of opinion (and I do not consider it was), it may nonetheless qualify, in that alternative scenario, as a prior inconsistent statement if, as occurred in this case, it implied an assertion of fact that is contrary to the witness evidence. 7. In either case, the witness made, by the prior statement (vis-à-vis the italicised passage), an assertion of fact as to the colour of the eyes of the person wearing the motorbike helmet, albeit with some equivocation. 8. The answer given in evidence denies the prior statement of fact. It does not do so directly in the sense of stating the obverse, but by denying the fact of having observed the colour. The statement that "I didn't pay much attention" does not communicate, as per the italicised passage, some equivocation as to the colour of the eyes, having stated he saw the person's eyes, but a statement to the effect that he had not observed the colour of the eyes or had not paid sufficient attention to the eyes so as to express a view as to their colour. 9. It follows that para 8 of the police statement contains a prior inconsistent statement for the purposes of s 38(1)(c) of the Evidence Act. There were no factors raised or apparent under ss 38(6) or 192 which would warrant refusal of leave. Amendments 09 March 2021 - Publication restriction removed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2021